JUDGMENT - (1) On the 19th August, 1958, the appellants had filed a suit on the original side of this High Court and in this suit they claimed a certain amount as being due and payable to them by the respondents defendants. The writ summons was served on the defendants on 3rd October, 1958. Thereafter the suit was adjourned several times in order to enable the defendants to file a written statement. The suit then came up for hearing on 17th December, 1958. On that date the defendants again applied for adjournment of the hearing. That application was rejected. The defendants counsel then asked for permission to withdraw from the case and this was granted. The plaintiffs led some evidence and thereafter a decree was passed against the defendants. On 9th January, 1959, the defendants took out a notice of motion for setting aside the decree passed against them. This was opposed by the plaintiffs. On 16th January, 1959, Mr. Justice K. K. Desai made an order, by which he made the notice of motion absolute on certain conditions. He set aside the decree passed against the defendants. Against the order made by him an appeal was filed under clause 15 of the Letters Patent. When the appeal came up for hearing, a preliminary objection was raised that the appeal was not competent. It was contended that an order setting aside a decree is not a judgment within the meaning of clause 15 of the Letters Patent and that consequently no appeal lies against such an order. The Division Bench hearing the appeal decided to refer the following question to the Full Bench:

"Whether the order of a single Judge on the Original side of the High Court setting aside an ex parte decree under Order 9, Rule 13 of the Civil Procedure Code or purporting to be one thereunder, amounts to a judgment within the meaning of that expression occurring in clauses 15 of the Letters Patent and is appealable?"

There has been considerable divergence of judicial opinion in regard to the meaning of the word "judgment" used in clause 15 of the Letters Patent. The different view held on this point were noticed by the Supreme Court in Asrumati Debi v. Rupendra Deb Rajkot, 1953 SCR 1159 : (AIR 1953 SC 198), but the Supreme Court did not express any final opinion in the matter. In Justices of the Peace for Calcutta v. Oriental Gas Co., 8 Beng LR 433. Couch C. J., defined the word judgment as follows:

"We think that judgment in clause 15 means a decision which affects the merits of the question between the parties by determining some right or liability. It may be either final or preliminary, or interlocutory, the difference between then being that a final judgment determines the whole cause or suit and a preliminary or interlocutory judgment determines only a part of it, leaving other matters to be determined."

As observed in 1953 SCR 1159 at p. 1166: (AIR 1953 SC 198 at p. 200),

"the judgment must be the final pronouncement, which puts an end to the proceeding sop far as the Court dealing with it is concerned."

It has also been held in several cases that an order, which is merely procedural in character or which can only be regarded as a step in the progress of a suit, is not a judgment. In this Court the definition given by Couch, C. J., has always been followed, see Sonbai v. Ahmedbhai, 9 Bom HCR 398, Miya Mahomed v. Zorabi, 11. Bom LR 241 at p, 245 and Salemahomed v. Mahomed Taher, 59 Bom LR 1193: (AIR 1958 Bom 210). We feel that we must adhere to the practice, which has been followed so far, and apply the same definition in the present case.

(2) An application or a notice of motion taken out to set aside a decree passed in a suit is not a proceeding in the suit. It is not an interlocutory application made during the pendency of the suit . it is a separate proceeding which is taken after the suit has been disposed of and has come to an end by the decree being passed. The proceeding terminates when an order setting aside the decree is made. Such an order would therefore satisfy one of the

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